PRECEDENTIAL FOR THE THIRD CIRCUIT No. 06-5109 …...Philadelphia subway stations. Appellee...

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No 06-5109

DISABLED IN ACTION OF PENNSYLVANIA

Appellant

v

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION

AUTHORITY

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D C No 03-cv-01577)

District Judge Honorable Gene E K Pratter

Argued January 10 2008

Before FISHER HARDIMAN and

STAPLETON Circuit Judges

(Filed August 19 2008 )

Stephen F Gold (Argued)

125 South 9th Street

Suite 700

Philadelphia PA 19107-0000

Rocco J Iacullo

Mark J Murphy

Disabilities Law Project

1315 Walnut Street

Suite 400

Philadelphia PA

Attorneys for Appellant

Gregory B Friel (Argued)

Jessica D Silver

United States Department of Justice

Civil Rights Division Appellate Section

PO Box 14403

Ben Franklin Station

Washington DC 20044-4403

Attorneys for Amicus Appellant

Saul H Krenzel (Argued)

Saul H Krenzel amp Associates


The Robinson Building Suite 800


Attorneys for Appellee

2

OPINION OF THE COURT

HARDIMAN Circuit Judge

In this statutory interpretation case we must decide when

the statute of limitations begins to run in a case arising under the

Americans With Disabilities Act (ADA) and the Rehabilitation

Act (RA) Appellant Disabled in Action of Pennsylvania (DIA)

argues that under the plain language of the statute its claims

accrued ldquoupon the completionrdquo of alterations to two

Philadelphia subway stations Appellee Southeastern

Pennsylvania Transportation Authority (SEPTA) argues and the

District Court held that DIArsquos claims accrued prior to the

completion of the alterations when DIA discovered that the

planned alterations would not include elevators

I

We view the facts and draw all reasonable inferences in

the light most favorable to DIA the party against whom

summary judgment was entered Feesers Inc v Michael

Foods Inc 498 F3d 206 208 (3d Cir 2007) (citing Andreoli

v Gates 482 F3d 641 644 (3d Cir 2007))

3

DIA is a nonprofit corporation that seeks to eliminate

discrimination against disabled individuals in all aspects of

community life To achieve this goal DIA employs a variety of

methods including government monitoring political activism

direct involvement in municipal planning and as a last resort

litigation Many of DIArsquos approximately 450 members use

wheelchairs and rely on SEPTA for their public transportation

needs

SEPTA is an agency of the Commonwealth of

Pennsylvania responsible for providing public transportation in

Southeastern Pennsylvania In Philadelphia SEPTArsquos City

Transit Division operates a vast network of subway and subway-

elevated rapid rails regional rails light rails trackless trolleys

and buses that provide over 850000 passenger trips per day

SEPTA receives federal funding for many of its activities

including its recent remodeling of an entrance to the 15th Street

Station

A 15th Street Station and Courtyard

The bustling 15th Street Station is located underground

near 15th and Market Streets in downtown Philadelphia

Passengers can access the station in two ways First using the

stairway at the southwest side of 15th and Market Streets

passengers can descend directly to the platform for the Market-

Frankford subway line Second using the stairway or escalator

at the northwest side of the same block passengers can descend

to the ldquo15th Street Courtyardrdquo From there they can turn

northward toward the Suburban Regional Rail Line Station

(Suburban Station) or southward toward the Market-Frankford

4

platform SEPTArsquos renovations to this latter entrance gave rise

to the present dispute1

Prior to SEPTArsquos renovations the 15th Street Courtyard

included a set of stairs and two escalators enclosed within a

headhouse On September 27 1999 SEPTA received a

$700000 grant from the Economic Development Administration

of the United States Department of Commerce for a project

entitled ldquoRenovation of 15th and Market Streets Headhouse at

Suburban Stationrdquo According to the grant the project was to

involve ldquovarious renovations to the 15th and Market Streets

entrances and related areasrdquo including ldquorenovation of entrances

to the underground train station concourse demolition of

1 The parties dispute whether the 15th Street Courtyard

is an ldquoentrancerdquo to the Market-Frankford Station or to the

Suburban Station According to SEPTA ldquoin order to reach the

15th Street Market-Frankford Station an individualrdquo must first

enter ldquothe Suburban Station Transit Facility at the 15th Street

Courtyardrdquo and then ldquotravel south in the 15th Street corridor

exit Suburban Station and travel over underground transit lines

before entering the 15th Street Market-Frankford Stationrdquo

Regardless whether it is technically labeled an ldquoentrancerdquo the

15th Street Courtyard undisputedly provides access to the

Market-Frankford Station Accordingly at this stage of the

litigation we accept DIArsquos characterization of the 15th Street

Courtyard as an ldquoentrancerdquo to the Market-Frankford Station

Michael Foods 498 F3d at 208 212 The District Court may

take up this nuance and determine its relevance to sect 12147(a)

liability on remand

5

existing facilities the constructioninstallation of new stairs

landscaping lighting signage finishes canopies and all

appurtenancesrdquo

In accepting the Commerce Department funding SEPTA

agreed to ldquopursue diligently the development of the Project so

as to ensure completion within [the] time schedulerdquo

Specifically the grant required SEPTA to begin construction

within 18 months of its receipt of the funds and to limit the total

construction period to 29 months In addition the grant was to

expire ldquofive (5) years from the fiscal year of the Grant Awardrdquo

requiring that the project be ldquophysically and financially

completed by September 30 2004rdquo

Having secured funding SEPTA applied to the City of

Philadelphia for a variance from certain provisions of the

Building Code Among the provisions from which SEPTA

sought a variance was Section B-111022(9) which requires

that ldquo[w]here building entrances are altered or when plans are

presented to relocate and provide a new primary entrance the

entrance shall be made accessiblerdquo For obvious reasons

SEPTArsquos variance application caught the attention of DIArsquos

legal counsel Stephen F Gold

Fearful that SEPTArsquos renovations would not include an

elevator Gold wrote to Edward McLaughlin City

Commissioner for the Department of Licenses and Inspections

In his letter of August 3 2000 Gold expressed concern ldquothat the

City would allow SEPTA to apply for such a variance on its

behalf for such a major public access pointrdquo Gold insisted that

ldquo[i]n addition to ensuring that renovations are carried out in

6

compliance with the Building Code the City also has an

obligation to ensure that such renovations are carried out in

compliance with the [Americans With Disabilities Act]rdquo He

asked McLaughlin to keep him informed ldquoas to how the City

plans to proceed with [SEPTArsquos] variance requestrdquo

Gold received no response from McLaughlin and

consequently discussed his concerns with Pete Winebrake an

attorney in the City Solicitorrsquos Office Gold summarized the

discussion in a letter dated September 28 2000 ldquoAs I stated on

the phone yesterday this problem should be resolved before

construction commences or you leave me with very few

options I am very concerned that the Cityrsquos train has already

left the station and I must act sooner than later [sic] I am

available to meet with you at your earliest conveniencerdquo

(Emphasis in original)

Gold heard nothing more from Winebrake but received

a letter dated November 14 2000 from Assistant City Solicitor

Fredrick K Pasour regarding the ldquo15th Street Courtyard Portion

of the Suburban Station Projectrdquo In pertinent part Pasourrsquos

letter stated

I represent the City of Philadelphia with respect to

the above-referenced project I understand that

you believe that the ADA its regulations and the

Accessibility Guidelines require an elevator in the

15th Street courtyard I also understand that you

are considering bringing a lawsuit to enjoin the

15th Street courtyard portion of the project if the

City issues a building permit based on plans that

7

do not include an elevator in the 15th Street

courtyard

This letter is to advise you that the City doe [sic]

not share your view that an elevator is required in

the 15th Street courtyard and has issued a building

permit for the project2 Please remember that the

15th Street courtyard will be readily accessible to

and usable by individuals with disabilities As

you are aware elevators are planned for other

locations near the 15th Street courtyard

The current bids for the portion of the project that

includes the 15th Street courtyard renovations are

only good through December 30 2000 If

therefore you plan to bring an action challenging

the 15th Street courtyard portion of the project

please do so in an expeditious manner

I understand that you had one meeting with

representatives of the City and SEPTA at the 15th

Street courtyard to discuss the project I believe

that another meeting this week may be useful in

order to discuss the project in more detail and to

determine if we can reach an agreement that is

2 It is unclear to what building permit this statement

refers as the City did not issue a permit for the 15th Street

Courtyard project until mid-February 2001 Apprsquox 216

8

satisfactory to you the disabled community the

City and SEPTA

Apprsquox 477

Despite Pasourrsquos letter Gold did not immediately file a

lawsuit and the City issued SEPTA a building permit on or

about February 14 2001 describing the 15th Street Courtyard

project as follows

Demolition incorporates head house stair

railings limited wall veneer pavement and

lighting systems Also to be removed are

planters fountain and ceilings Construction

scope consists of glass head house stair (2) retail

spaces railings storefront sys planters lighting

and paving installed as well as new ceiling

Apprsquox 216 SEPTA commenced construction a few days later

The record suggests several explanations for DIArsquos

decision not to file suit prior to this juncture First Gold

testified that in 2000 he met with representatives of SEPTA and

the City because ldquothey were really anxious to get a commitment

from [him] that there would not be a lawsuit regarding 15th

Streetrdquo See also Apprsquox 477 (referring to a meeting between

Gold and ldquorepresentatives of the City and SEPTArdquo to determine

if the parties could ldquoreach an agreementrdquo) According to Gold

Frances Egan Assistant to SEPTArsquos General Manager for

Government and Public Affairs and Deborah Russo a

representative of the City assured him that in lieu of an elevator

9

at 15th Street SEPTA ldquowould put in the elevator at City Hall

and begin construction in lsquo02 with the completion date of lsquo04rdquo3

See also Apprsquox 477 (noting that ldquoelevators are planned for other

locations near the 15th Street courtyardrdquo)

Gold discussed the proposed compromise with DIA and

DIA agreed that it was acceptable Gold informed Egan of his

clientrsquos assent but neither party memorialized the deal4

Assuaged nonetheless5 DIA took no further action until late

3 The City Hall project is discussed in Part IB infra

4 Although the parties stipulated DIArsquos allegations of the

DIA-SEPTA-City agreement out of the litigation the stipulation

only precludes DIA ldquofrom presenting any claim that Defendant

SEPTA allegedly agreed to construct elevators at City Hall in

lieu of construction of an elevator at the northwest corner of

15th and Market Streetsrdquo Apprsquox 136 (emphasis added) Here

DIA raises no ldquoclaimrdquo based on the alleged agreement See

Disabled in Action of Pa v Southeastern Pa Transp Auth No

03-CV-1577 2006 WL 3392733 at 16 (ED Pa Nov 17

2006) (hereinafter DIA) Rather DIA proffers the agreement as

an explanation for its decision not to file suit before construction

began on the 15th Street Station entrance

5 Gold was confident that he could rely on the assurances

of Egan and Russo because of their long professional

relationship and DIA Executive Director Nancy Salandra was

content to wait and see if ldquo[SEPTA] would do the right thingrdquo

10

2002 when it appeared that SEPTA was not installing an

elevator at City Hall6

Goldrsquos explanation for DIArsquos decision not to file a pre-

construction lawsuit is supported by a Settlement Agreement in

which DIA voluntarily dismissed its claims against the City and

the City affirmed that it ldquoonly granted permits for [the 15th

Street Courtyard] renovation because [it] believed SEPTA had

agreed to construct elevators in the City Hall Courtyard in lieu

of the required elevator at 15th and Marketrdquo

Alternatively the record suggests that at some point

DIArsquos strategy shifted from obtaining a pre-construction

injunction to pursuing post-construction remedies based on

Goldrsquos belief that even though ldquo[SEPTA] had started

6 The foregoing account parallels the allegations in

DIArsquos Second and Third Amended Complaints with one

exception The Complaints state that the negotiations among

Gold SEPTA and the City occurred ldquo[i]n 2000 while the 15th

and Market Street entrance was in constructionrdquo Apprsquox 111

119 Construction on the entrance did not commence until

February 2001 however Apprsquox 212 (SEPTArsquos Capital Project

Progress Report noting that a ldquo[p]re-construction meetingrdquo

regarding the ldquo15th Street Entrancerdquo was held on February 5

2001) (emphases added) Apprsquox 216 Because we must resolve

such factual discrepancies in the light most favorable to DIA

we assume that construction had not commenced when the

alleged deal among DIA SEPTA and the City was brokered

Michael Foods 498 F3d at 208 212

11

construction or even completed [construction]rdquo the ADA

enabled DIA to force SEPTA to install an elevator Gold

admitted that he gave Pasourrsquos admonition to file suit in an

expeditious manner ldquo[v]ery very very much considerationrdquo but

determined that he could ldquooptimize representing [DIA] [by]

letting [SEPTA] move the stairs and begin[] the construction

because [DIA] could always get the elevator and make [SEPTA]

put it [in] if necessary along 15th Streetrdquo For reasons that are

not clear from the record Gold concluded that if construction

did not proceed ldquothere would be no elevatorrdquo Accordingly he

ldquodecided to let [SEPTA and the City] sit in their own petard

[sic]rdquo7

Whatever the reasons for waiting DIA filed its initial

Complaint on March 14 2003 approximately eight months after

the newly renovated 15th Street Courtyard entrance was opened

on August 8 2002 without an elevator DIA requested

ldquopermanent injunctive relief to enjoin [SEPTA] to begin

construction immediately of a[n] elevator at the 15th and Market

7 In the pantheon of misused metaphors ldquohoist with his

own petardrdquo may be preeminent A ldquopetardrdquo is a small bomb

used to break down doors but the word was derived from the

Middle French ldquopeterrdquo meaning ldquoto break windrdquo See

WEBSTERrsquoS THIRD NEW INTERNATIONAL DICTIONARY 1689

(1993) It is no wonder the word found favor with the master of

the double entendre See WILLIAM SHAKESPEARE HAMLET Act

III Scene 4 (ldquoFor lsquotis the sport to have the enginer Hoist with

his own petardrdquo)

12

Street entrance to assure access for persons with

disabilitiesrdquo

B City Hall Station and Courtyard

The second subject of the present dispute is SEPTArsquos

replacement of an escalator that carried passengers from the

concourse above the City Hall Station platform to City Hall

Courtyard8 Located near the 15th Street Station City Hall

Station is one of the busiest stops on the Broad Street subway

line and serves as a transfer point between the Broad Street

Line the Market-Frankford Line and Regional Rail Lines For

8 The parties dispute whether this escalator is an exit

from the City Hall Station platform or from the City Hall Station

mezzanine a concourse one level above the platform DIA

asserts that the escalator ldquoserves as an exit for patrons

disembarking from the Broad Street Subway City Hall Station

and pedestrians traversing the concourserdquo SEPTA admits that

the escalator ldquoserves as an exit for pedestrians traversing the

concourserdquo but denies that it is ldquoan exit for patrons

disembarking from City Hall Stationrdquo Apparently the City Hall

Courtyard escalator does not extend beyond the mezzanine level

so that passengers exiting onto the City Hall Station platform

must take another escalator to the mezzanine level then board

the City Hall Courtyard escalator to reach street level At this

stage of the proceedings we reject SEPTArsquos hyper-technical

definition of ldquoexitrdquo Michael Foods 498 F3d at 208 212 The

District Court may consider the relevance if any of this dispute

on remand

13

instance from the concourse below City Hall Courtyard

passengers can access the 11th and 13th Street Market-

Frankford Line platforms without using stairs

The City Hall Courtyard project was part of SEPTArsquos

Escalator Replacement Program launched in 1999 to improve

the safety of escalators throughout the system SEPTA included

funding for the program in its FY 2001 Capital Budget after

holding a public meeting to discuss the improvements on May

22 2000 Although no representative of DIA attended the

meeting DIArsquos Executive Director testified that DIA reviews

SEPTArsquos Capital Budget each year and was aware of the

project

By August 17 2001 SEPTA had barricaded the area

around the City Hall Courtyard escalator and posted signs that

read ldquoProject of the Pennsylvania Public Transportation

Assistance Fund Escalator Replacement at Erie Spring Garden

City Hall amp 30th Street Stations Southeastern Pennsylvania

Transportation Authorityrdquo SEPTA removed the existing

escalator extended the wellway and relocated the truss upon

which it sat and installed a new escalator Construction was

completed and the escalator was opened to the public on or

about August 24 2003 The finished project did not include an

elevator On February 15 2005 DIA filed its Fourth Amended

Complaint adding allegations regarding this project

C The District Court Proceedings

DIA filed its initial Complaint on March 14 2003

alleging that SEPTArsquos renovations to the 15th Street Station

14

entrance violated the ADA and the RA The District Court

dismissed the complaint because DIA failed to name the City of

Philadelphia the owner of the real property upon which the

entrance is located as a defendant After the Court granted DIA

relief from the dismissal DIA added the City as a defendant in

its First Amended Complaint On October 10 2003 DIA filed

a Second Amended Complaint which included allegations about

a deal between DIA SEPTA and the City to install an elevator

at the City Hall Courtyard instead of the 15th Street Courtyard

After an unsuccessful settlement attempt DIA filed a

Third Amended Complaint adding an ADA ldquokey stationrdquo claim

See 42 USC sect 12147(b) 29 CFR sect 3747 SEPTA moved to

dismiss the key station claim and argued that portions of the

Third Amended Complaint should be stricken pursuant to a

stipulation between DIA and SEPTA The District Court

refused to dismiss the key station claim but DIA agreed to strike

its allegations that SEPTA had agreed to install an elevator at

City Hall in lieu of 15th Street

On August 16 2004 DIA reached a settlement

agreement with the City Therein the City stipulated that ldquo[i]t

is the Cityrsquos legal opinion that SEPTA is legally obligated under

the ADA and accompanying Regulations to construct an

elevator at the 15th and Market Street Courtyard entrance which

SEPTA renovatedrdquo Moreover the City asserted that it ldquoonly

granted permits for [the 15th Street] renovation because [it]

believed SEPTA had agreed to construct elevators in the City

Hall Courtyardrdquo Based on this agreement the District Court

dismissed the City from the case

15

On February 15 2005 DIA filed a Fourth Amended

Complaint in which it added a second claim under sect 12147(a)

based on SEPTArsquos renovations to the City Hall Courtyard DIA

alleged that SEPTArsquos renovations to both the 15th Street and

City Hall Courtyards constituted ldquoalterationsrdquo that triggered

ADA and RA accessibility obligations9 42 USC sect 12147(a)

29 USC sect 794(a) DIA also alleged that both 15th Street and

City Hall are ldquokey stationsrdquo that SEPTA must make accessible

42 USC sect 12147(b) 29 USC sect 794(a) DIA requested inter

alia an injunction compelling SEPTA to construct elevators at

both locations After completing discovery the parties filed

cross motions for summary judgment

The District Court granted SEPTArsquos motion for summary

judgment on all counts As to DIArsquos sect 12147(a) claims the

court reasoned that ldquo[t]o determine the accrual date of a

discrimination claim a court must focus on when the

discriminatory act occurred not when the effect of that act

became painfulrdquo DIA 2006 WL 3392733 at 14 (citing

Chardon v Fernandez 454 US 6 8 (1981)) The District

Court rejected DIArsquos argument that SEPTArsquos discriminatory

acts occurred ldquoupon completion of [the] alterationsrdquo to the 15th

Street and City Hall Courtyards Id at 13 (citing 42 USC

sect 12147(a)) Rather the District Court held that the claims

9 Because the District Court dismissed DIArsquos sect 12147(a)

claims as barred by the statute of limitations it did not reach the

vigorously disputed question of whether SEPTArsquos renovations

constituted ldquoalterationsrdquo within the meaning of the ADA We

leave this question for the District Court on remand

16

accrued when DIA knew or had reason to know that SEPTArsquos

renovations would not include elevators According to the

District Court DIA had such knowledge regarding the 15th

Street Courtyard ldquono later than November 1 2000 when DIA

was informed that SEPTA would proceed with the planned

construction at the 15th and Market Street Courtyard without

installing an elevatorrdquo id at 14 and regarding the City Hall

Courtyard ldquoat least as early as August 17 2001rdquo when a sign

was posted ldquoin the City Hall Courtyard on the outside of the

boarded-off construction area where the escalator was being

replacedrdquo Id at 17 Because DIA filed its sect 12147(a) claims

more than two years after these dates the District Court

dismissed them as barred by the statue of limitations id and

DIA appealed10

II

DIArsquos claims arise under Section 227 of the ADA 42

USC sect 12147(a) and Section 504 of the RA 29 USC

sect 794(a)11 The District Court had jurisdiction over these claims

10 The District Court also dismissed DIArsquos ldquokey stationrdquo

claims holding that sect 12147(b) does not create a private right of

action by which individuals may enforce Department of

Transportation regulations designating ldquokey stationsrdquo Id at

29 This decision is not challenged on appeal

11 Because the procedures rights and remedies provided

by Section 227 of the ADA are identical to those provided by

Section 504 of the RA see 42 USC sectsect 12133 and 12147(a)

17

pursuant to 28 USC sectsect 1331 and 1343 We review the District

Courtrsquos final order granting summary judgment to SEPTA

pursuant to 28 USC sect 1291

Our review is plenary and we apply the same standard as

the District Court Michael Foods 498 F3d at 212 We will

affirm the grant of summary judgment if ldquothe pleadings

depositions answers to interrogatories and admissions on file

together with the affidavits if any show that there is no genuine

issue as to any material factrdquo and that SEPTA is ldquoentitled to

judgment as a matter of lawrdquo FED R CIV P 56(c) In making

this determination we ldquoview the facts in the light most

favorablerdquo to DIA and ldquodraw all inferencesrdquo in DIArsquos favor

Michael Foods 498 F3d at 212 (quoting Farrell v Planters

Lifesavers Co 206 F3d 271 278 (3d Cir 2000))

In 1973 Congress passed the Rehabilitation Act to assure

that no individual with a disability ldquoshall be subjected to

discrimination under any program or activity receiving Federal

financial assistancerdquo 29 USC sect 794(a) Seventeen years

later Congress extended this mandate to cover all public

we will generally refer only to the ADA with the understanding

that both the ADA and the RA are implicated See Doe v

County of Centre 242 F3d 437 446 (3d Cir 2001) see also

McDonald v Commw of Pa 62 F3d 92 95 (3d Cir 1995)

(ldquoWhether suit is filed under the Rehabilitation Act or under the

[Americans With] Disabilities Act the substantive standards for

determining liability are the samerdquo)

18

transportation providers in Title II of the Americans With

Disabilities Act See 42 USC sectsect 12132 and 12131(1) Title

II begins with a general prohibition of disability-based

discrimination sect 12132 followed by seven provisions that

define what ldquoshall be considered discriminationrdquo for purposes

of the statute 42 USC sectsect 12142 12143 12144 12146

12147 12148 and 12162 In this case we address an important

question of first impression regarding one of these provisions

when does a claim under sect 12147(a) accrue

III

Neither Title II of the ADA nor Section 504 of the RA

includes an express statute of limitations As both statutes were

enacted prior to the effective date of the default four-year statute

of limitations for federal statutes see 28 USC sect 1658 we

borrow the statute of limitations of the most analogous state law

cause of action North Star Steel Co v Thomas 515 US 29

33-34 (1995) Wilson v Garcia 471 US 261 266-67 (1985)

The District Court concluded and the parties do not dispute that

Pennsylvaniarsquos two-year statute of limitations for personal injury

claims should apply to claims under sect 12147(a)

This conclusion is consistent with our precedent

regarding the statute of limitations for federal civil rights claims

See eg Lake v Arnold 232 F3d 360 368 (3d Cir 2000) Kost

v Kozakiewicz 1 F3d 176 190 (3d Cir 1993) Bougher v

Univ of Pittsburgh 882 F2d 74 78 (3d Cir 1989) It is also

consistent with the majority of Courts of Appeals that have

decided the question See Gaona v Town amp Country Credit

324 F3d 1050 1055 (8th Cir 2003) (noting that ldquomost Courts

19

of Appeal[s] have applied the state statute of limitations for

personal injury actions to claims under the Rehabilitation Act

and the ADArdquo) Everett v Cobb County Sch Dist 138 F3d

1407 1409-10 (11th Cir 1998) Soignier v Am Bd of Plastic

Surgery 92 F3d 547 551 (7th Cir 1996) Baker v Bd of

Regents 991 F2d 628 632 (10th Cir 1993) Morse v Univ of

Vermont 973 F2d 122 127 (2d Cir 1992) Hickey v Irving

Indep Sch Dist 976 F2d 980 983 (5th Cir 1992) cf Wolsky

v Med Coll of Hampton Rds 1 F3d 222 223-25 (4th Cir

1993)

Accordingly we hold that the statute of limitations

applicable to claims under Title II of the ADA and Section 504

of the RA is the statute of limitations for personal injury actions

in the state in which the trial court sits In this case the

applicable statute is 42 PA CONS STAT sect 5524 which

prescribes a two-year statute of limitations

IV

The more difficult question mdash and the crux of the dispute

between DIA and SEPTA mdash is when this two year statute of

limitations begins to run In answering this question we note

that ldquo[t]he ADA is a remedial statute designed to eliminate

discrimination against the disabled in all facets of societyrdquo and

as such ldquoit must be broadly construed to effectuate its

purposesrdquo Kinney v Yerusalim 812 F Supp 547 551 (ED

Pa 1993) (citing Tcherepnin v Knight 389 US 332 335

(1967)) affrsquod 9 F3d 1067 (3d Cir 1993)

A

20

Ordinarily a statute of limitations begins to run from the

moment the potential plaintiff has a ldquocomplete and present cause

of actionrdquo Bay Area Laundry amp Dry Cleaning Pension Trust

Fund v Ferber Corp 522 US 192 195 (1997) (quoting

Rawlings v Ray 312 US 96 98 (1941)) Arnold 232 F3d at

366 (quoting Ross v Johns-Manville Corp 766 F2d 823 826

(3d Cir 1985)) (limitations period begins to run ldquofrom the time

the cause of action accrue[s]rdquo) For federal causes of action the

accrual date is a matter of federal law Romero v Allstate

Corp 404 F3d 212 221 (3d Cir 2005)

Where Congress has specified an accrual date by

ldquoexplicit commandrdquo or ldquoby implication from the structure and

text of the statuterdquo we defer to its directive TRW Inc v

Andrews 534 US 19 27-28 (2001) see Romero 404 F3d at

222 ldquo[I]n the absence of a contrary directive from Congressrdquo

we apply the ldquofederal discovery rulerdquo which dictates that a

federal cause of action accrues ldquowhen the plaintiff discovers or

with due diligence should have discovered the injury that forms

the basis for the claimrdquo Romero 404 F3d at 222 (internal

quotation and citations omitted)12

We agree with the parties that Congress did not

ldquoexplicitly commandrdquo an accrual date for sect 12147(a) claims as

it has done for other civil rights actions Cf 42 USC 2000eshy

12 The Supreme Court has not adopted the ldquodiscovery

accrual rulerdquo as its own Andrews 534 US at 27 (internal

citation omitted) and Justice Scalia has criticized the rule as

ldquobad wine of recent vintagerdquo Id at 37 (Scalia J concurring)

21

5(e)(1) (ldquoA charge under this section shall be filed within one

hundred and eighty days after the alleged unlawful employment

practice occurred rdquo) id sect 3613 (ldquoAn aggrieved person may

commence a civil action not later than 2 years after the

occurrence or the termination of an alleged discriminatory

housing practice rdquo) Nevertheless for the reasons that

follow we hold that the ldquostructure and text of the statuterdquo

Andrews 534 US at 28 evince Congressrsquos intention that claims

under sect 12147(a) accrue ldquoupon the completion of

alterationsrdquo to public transportation facilities

1

The portion of sect 12147(a) at issue in this appeal provides

With respect to alterations of an existing facility

or part thereof used in the provision of designated

public transportation services that affect or could

affect the usability of the facility or part thereof

it shall be considered discrimination for purposes

of section 12132 of this title and section 794 of

Title 29 for a public entity to fail to make such

alterations (or to ensure that the alterations are

made) in such a manner that to the maximum

extent feasible the altered portions of the facility

are readily accessible to and usable by individuals

with disabilities including individuals who use

wheelchairs upon the completion of such

alterations

22

As the District Court correctly observed the dispute

between DIA and SEPTA ldquoemanates from the difference in how

the parties interpretrdquo this provision ldquoas to when the alleged

discrimination occursrdquo DIA 2006 WL 3392733 at 11 Like

the parties and the District Court we believe sect 12147(a)rsquos

concluding phrase mdash ldquoupon the completion of such alterationsrdquo

mdash is of fundamental importance in answering this question

DIA argues that the phrase modifies the entire definition

of what ldquoshall be considered discriminationrdquo because ldquoonly

when alterations are completed and the inaccessible facility

is re-opened will people with mobility disabilities be subject to

discriminationrdquo Therefore DIA concludes claims under

sect 12147(a) do not accrue until alterations are completed

SEPTA invokes the rule of the last antecedent arguing

that the ldquoupon the completionrdquo phrase only modifies the phrase

ldquothe altered portions of the facility are readily accessible to and

usable by individuals with disabilitiesrdquo and not ldquothe entire

definition of what constitutes discriminationrdquo 13 Under this

13 The ldquorule of the last antecedentrdquo is a principle of

statutory interpretation under which ldquoa limiting clause or phrase

should ordinarily be read as modifying only the noun or

phrase that it immediately followsrdquo Barnhart v Thomas 540

US 20 26 (2003) (emphasis added) This rule does not help

SEPTA because the statutory phrase immediately preceding

ldquoupon the completion of such alterationsrdquo is ldquoincluding

individuals who use wheelchairsrdquo To be precise SEPTA is

arguing for a rule of the second-to-last antecedent mdash a far more

23

interpretation which the District Court adopted the function of

the ldquoupon the completionrdquo phrase is ldquomerely [to] suggest that

accessibility for disabled individuals must be in place at the time

the alterations are completedrdquo DIA 2006 WL 3392733 at 13

In other words the phrase merely acknowledges that while

renovations are in progress facilities will necessarily be

inaccessible to everyone including ldquoindividuals with

disabilitiesrdquo and that this temporary inaccessibility is not what

sect 12147(a) prohibits

Our evaluation of these conflicting interpretations is

guided by familiar rules of statutory construction Our primary

concern is to give effect to Congressrsquos intent Rosenberg v XM

Ventures 274 F3d 137 141 (3d Cir 2001) We assume that

ldquoCongress expresses its intent through the ordinary meaning of

its languagerdquo and therefore begin ldquowith an examination of the

plain language of the statuterdquo Id If the language is

unambiguous our inquiry is at an end Id

A statutory provision is not ambiguous simply because

ldquoby itself [it is] susceptible to differing constructionsrdquo because

in addition to the ldquostatutory language itselfrdquo we take

account of ldquothe specific context in which that language is used

and the broader context of the statute as a wholerdquo In re Price

370 F3d 362 369 (3d Cir 2004) We assume for example that

every word in a statute has meaning and avoid interpreting one

part of a statute in a manner that renders another part

superfluous Rosenberg 274 F3d at 141-42 We also consider

aspirational proposition

24

the overall ldquoobject and policyrdquo of the statute United States v

Schneider 14 F3d 876 879 (3d Cir 1994) and avoid

constructions that produce ldquooddrdquo or ldquoabsurd resultsrdquo or that are

ldquoinconsistent with common senserdquo See Public Citizen v US

Dept of Justice 491 US 440 454 (1989) (internal quotations

omitted) 2A N SINGER SUTHERLAND STATUTES AND

STATUTORY CONSTRUCTION sect 4512 at 92 (6th ed 2000)

(hereinafter SUTHERLAND)

Applying these principles to sect 12147(a) we find DIArsquos

interpretation of the ldquoupon the completionrdquo phrase more

persuasive The language appears in the ldquospecific contextrdquo of a

single sentence that defines activities that ldquoshall be considered

discriminationrdquo and in the ldquobroader contextrdquo of Title II which

assures that no ldquoindividual with a disabilityrdquo is ldquosubjected to

discriminationrdquo 42 USC sectsect 12147(a) and 12132

ldquoDiscriminationrdquo as it is ordinarily defined is the denial of

ldquoprivileges to a certain class because of race age sex

nationality religion or handicaprdquo BLACKrsquoS LAW DICTIONARY

500 (8th ed 2004) The privileges at stake in sect 12147(a) are

access to and use of public transportation facilities It is

difficult to understand how these privileges are denied to

individuals with disabilities by the mere promulgation or

approval of renovation plans that do not include accessibility

features Instead as Congress recognized it is only when

renovations are completed that individuals with disabilities will

be excluded from accessing and using such facilities while

others will not This is the time at which disabled individuals

are subjected to the disparate treatment that sect 12147(a) was

enacted to prevent

25

SEPTArsquos argument that the ldquoupon the completionrdquo

language merely clarifies that sect 12147(a) imposes no duty upon

public entities to ensure accessibility while transportation

facilities are under construction is specious We are confident

that Congress would not have felt compelled to make such an

obvious clarification See Public Citizen 491 US at 454

Faced with a choice between SEPTArsquos interpretation which

essentially renders the phrase surplusage and DIArsquos

interpretation which gives it substantial effect we choose the

latter See Silverman v Eastrich Multiple Investor Fund LP

51 F3d 28 31 (3d Cir 1995) (A statute ldquoshould be construed so

that effect is given to all its provisions so that no part will be

inoperative or superfluous void or insignificantrdquo)

SUTHERLAND sect 4512 at 94 (ldquo[A] construction that renders a

portion of the statute meaningless should not be reached by the

court unless that construction is unavoidablerdquo) SUTHERLAND sect

4606 at 190-92 (ldquoNo clause[] sentence[] or word shall be

construed as superfluous void or insignificant if the

construction can be found which will give force to all the

words of the statuterdquo)

We thus interpret the ldquoupon the completionrdquo clause as

modifying the statutory definition of discrimination such that

claims under sect 12147(a) arise ldquoupon the completionrdquo of

inaccessible ldquoalterationsrdquo

2

Our interpretation of this seminal clause in dispute on

appeal is bolstered by the remainder of the statute In fact even

if the ldquoupon the completionrdquo clause was absent from the statute

26

we would conclude that a claim under sect 12147(a) does not

accrue until alterations are completed

As the District Court stated ldquo[t]o determine the accrual

date of a discrimination claim a court must focus on when the

discriminatory act occurredrdquo DIA 2006 WL 3392733 at 14

(citing Chardon 454 US at 8) Section 12147(a) defines two

closely related discriminatory acts the failure (1) ldquoto makerdquo

alterations and (2) the failure ldquoto ensure that alterations are

maderdquo in such a manner that the altered portions of

transportation facilities are accessible and usable

Regarding the first act we agree with the amicus curiae

submission of the US Department of Justice that as a matter of

logic there can be no ldquofail[ure] to makerdquo the ldquoaltered portionsrdquo

of a facility accessible until the alterations are completed The

relevant act is ldquoto makerdquo mdash ldquoto cause (something) to existrdquo

BLACKrsquoS LAW DICTIONARY 975 (8th ed 2004) Merely funding

designing approving or even commencing construction of

alterations that will not provide accessibility does not ldquocauserdquo

such alterations ldquoto existrdquo especially in light of the notoriously

contingent nature of construction plans See eg DIA v Sykes

833 F2d 1113 1115 (3d Cir 1987) (subway station renovation

planned and funded in 1979 but modified in 1981 to exclude

elevator) Therefore an individual cannot suffer discrimination

under this portion of the statute until the alterations are

completed

Unlike the first discriminatory act the second act can

logically occur before during or after construction For

example a public entity arguably fails ldquoto ensure that

27

alterations are maderdquo when it fails to insist that construction

drawings include certain features14 Although rational in vacuo

this reading is unfaithful to the structure of the statute Price

370 F3d at 369 The phrase ldquoor to ensure that the alterations are

maderdquo appears in parentheses immediately following the phrase

ldquoto fail to make such alterationsrdquo indicating that the meaning of

the former phrase is related to or dependent upon the latter

See Peters v Ashcroft 383 F3d 302 309 (5th Cir 2004) (noting

that parentheses ldquoreduce[] the grammatical importrdquo of the

language contained therein) see generally Pritchard v Liggett

amp Myers Tobacco Co 350 F2d 479 483 (3d Cir 1965) (noting

that punctuation can be a relevant factor in statutory

interpretation) SUTHERLAND sect 4715 261 (favoring rule that

treats punctuation as a relevant factor in statutory construction)

Furthermore both phrases center around a form of the verb ldquoto

makerdquo an additional indication that they are in DIArsquos words

ldquotwo sides of the same coinrdquo See Merrill Lynch Pierce Fenner

14 We nevertheless question how plans can ldquoensurerdquo

certain results for it is axiomatic that even the best laid plans of

mice and men often go awry See eg Sykes 833 F2d at 1115

Paterson-Leitch Co v Mass Mun Wholesale Elec Co 840

F2d 985 986 (1st Cir 1988) see generally Harris v NY State

Dept of Health 202 F Supp 2d 143 155 (SDNY 2002)

(ldquo[A]s is common wisdom even the best laid plans are bound to

contain inherent flaws and mdash in the course of their evolution

from idea to reality from rudiments to perfected model mdash to

encounter operational and developmental difficulties and even

to be tested by purposeful hindering or corruption of their

effective functioningrdquo)

28

amp Smith Inc v Dabit 547 US 71 86 (2006) (ldquoGenerally

identical words used in different parts of the same statute are

presumed to have the same meaningrdquo) (internal quotation and

citation omitted) Given this context we hesitate to ascribe to

the phrase ldquoensure that the alterations are maderdquo the broad and

independent meaning SEPTA urges See Mizrahi v Gonzales

492 F3d 156 166 (2d Cir 2007) (declining to ascribe

independent meaning to parenthetical statutory phrase beginning

with word ldquoorrdquo because ldquoit can reasonably be construed to

illustrate or explainrdquo the preceding phrase)

It is more probable that Congress included the

parenthetical and used the passive verb form ldquoare maderdquo

because it recognized that a public entity is rarely the entity that

ldquomake[s]rdquo the alterations Instead alterations ldquoare maderdquo by

sundry contractors and subcontractors Without the

parenthetical a public entity could immunize itself from

sect 12147(a) liability by delegating renovation projects to private

entities that are not subject to ADA liability 42 USC sect 12132

The parenthetical closes this loophole by placing the onus on the

public entity as opposed to its agents ldquoto ensurerdquo that

alterations ldquoare maderdquo in an accessible and usable manner

This interpretation comports with a similar provision in

Title III of the ADA (dealing with public accommodations)

ldquo[D]iscrimination includes mdash with respect to

a facility or part thereof that is altered by on

behalf of or for the use of an establishment in a

manner that affects or could affect the usability of

the facility or part thereof a failure to make

29

alterations in such a manner that to the maximum



with disabilitiesrdquo

42 USC sect 12183(a)(2) (emphasis added) Absent from

sect 12183(a)(2) is the ldquoor to ensure that the alterations are maderdquo

phrase Instead the statute provides that the offending

alterations can be made ldquobyrdquo or ldquoon behalf ofrdquo a public entity

This language is consistent with our conclusion that Congress

included the parenthetical phrase in sect 12147(a) to cover the

situation in which alterations to a public transportation facility

are made ldquoon behalf ofrdquo a public entity

Moreover regardless whether the ldquomak[er]rdquo of the

alterations is the public entity itself or the entityrsquos agents the

general activity that sect 12147(a) regulates is the same the

ldquomak[ing]rdquo of alterations Cf 42 USC sect 3604(f)(3)(C)

(regulating the underlying activities of ldquodesign[ing] and

construct[ing]rdquo multifamily dwellings) (emphases added) As

discussed the failure to ldquomakerdquo alterations in a certain manner

as opposed to ldquoplanrdquo or ldquodesignrdquo them cannot logically occur

until the completion of such alterations

3

Finally to establish whether a public entity committed

the discriminatory acts of ldquofail[ing] to makerdquo alterations or

ldquofail[ing] to ensure that alterations are maderdquo in an

accessible manner the statute directs us to determine whether

ldquothe altered portions of the facility are readily accessiblerdquo mdash

30

not whether the portions to be altered will be readily accessible

42 USC sect 12147(a) (emphases added) The verb tenses

employed by Congress in this phrase (ie ldquoalteredrdquo past tense

and ldquoarerdquo present tense) further clarify that the time for passing

upon a public entityrsquos success or failure in complying with the

statute is upon completion of the alterations

In short despite the District Courtrsquos repeated emphasis

on SEPTArsquos construction plans15 the word ldquoplanrdquo is absent

from the statute while the phrase ldquocompletion of alterationsrdquo

is present Consistent with this language as well as the structure

and purpose of the statute we hold that the discriminatory acts

defined by sect 12147(a) occur and the statute of limitations

begins to run ldquoupon the completion of alterationsrdquo to public

transportation facilities

B

15 See eg DIA 2006 WL 3392733 at 12 (referring to

ldquoSEPTArsquos planned renovationsrdquo) (emphasis in original) id

(formulating the question presented as ldquowhen in a suit under the

ADA a discriminatory action is deemed to have occurred

where the alleged discriminatory action is the violation of a

statutory obligation to include an accommodation for disabled

individuals in planning and completing a construction projectrdquo)

(emphasis added) id at 14 (noting importance of SEPTArsquos

intention to ldquoproceed with the planned construction at the 15th

and Market Street Courtyard without installing an elevatorrdquo)

(emphasis added)

31

Before discussing the policy considerations underlying

our holding we clarify the proper application of the discovery

rule as it was the basis of the District Courtrsquos holding and the

subject of extended debate between the parties The District

Court reasoned

[In] the absence of any explicit statutory

limitation period the Court must look

elsewhere for guidance as to when a cause of

action such as this one accrues Under federal

law a claim accrues on the date when the plaintiff

knows or has reason to know of the injury that is

the basis of the action To determine the accrual

date of a discrimination claim a court must focus

on when the discriminatory act occurred not

when the effect of that act became painful

DIA 2006 WL 3392733 at 13-14 (internal quotations and

citations omitted) Although largely accurate two corrections

to this statement of law are necessary First as discussed in Part

IVA in addition to arising from an ldquoexplicit statutoryrdquo

directive id at 13 an accrual date can arise ldquoby implication

from the structure and text of the statuterdquo Andrews 534 US

at 27-28 Second the District Court erred in applying the

discovery rule to establish when DIArsquos claims accrued before

first determining per the terms of sect 12147(a) when DIArsquos

alleged injuries occurred These inquiries are analytically

distinct

Because a potential plaintiff cannot discover his injury

before it has occurred the discovery rule only postpones the

32

accrual date of a claim ldquowhere the [plaintiff] is unaware of the

injuryrdquo CGB Occupational Therapy Inc v RHA Health Servs

Inc 357 F3d 375 384 (3d Cir 2004) It does not accelerate

the accrual date ldquowhen the [plaintiff] becomes aware that he will

suffer injury in the futurerdquo Id see Podobnik v US Postal

Serv 409 F3d 584 590 (3d Cir 2005) (ldquoThe discovery rule

delays the initial running of the statute of limitations but only

until the plaintiff has discovered (1) that he or she has been

injured and (2) that this injury has been caused by another

partyrsquos conductrdquo) (emphasis added) Oshiver v Levin Fishbein

Sedran amp Berman 38 F3d 1380 1386 (3d Cir 1994) (The

discovery rule ldquopostpones the beginning of the limitations period

from the date a plaintiff was wronged until the date a plaintiff

discovers that he or she was injuredrdquo) (emphasis added)

Accordingly the first step in applying the discovery rule

in a situation like the present is to establish when the injurious

discriminatory act defined by the statute actually occurred See

Podobnik 409 F3d at 590 The second step is to determine

whether that injury was immediately discoverable or whether

the accrual date will be postponed until it is reasonable to expect

the plaintiff to discover the injury Oshiver 38 F3d at 1386

Having skipped step one the District Courtrsquos application of the

discovery rule resulted in an accrual date that preceded the

occurrence of DIArsquos alleged injuries

Because DIA was not injured before SEPTA completed

its alterations the discovery rule would not have rendered DIArsquos

claims untimely

33

C

We conclude by reviewing the policy considerations

underlying our holding See Price 370 F3d at 375 In

particular we appreciate the District Courtrsquos concern that

[I]t would be impractical to impose upon a

defendant the requirement that it fully complete a

facility modification before having to address any

assertion that modifications that can be clearly

understood from design drawings and

specifications amount to alterations triggering an

obligation under the ADA that might require

significant and material modifications that surely

would have been more easily efficiently and

economically incorporated well prior to the

completion of the work

DIA 2006 WL 3392733 at 13 This concern mdash that public

entities will incur unnecessary expense if potential plaintiffs can

wait until ldquothe last nail is hammered into placerdquo to bring suit mdash

is assuaged by a number of mitigating and countervailing

considerations Id

First our interpretation of sect 12147(a) does not prevent a

public entity like SEPTA from obtaining preliminary declaratory

relief to ensure ADA compliance prior to commencing

alterations See 28 USC sect 2201 Declaratory relief is

available ldquoto settle actual controversies before they ripen into

violations of a law or a breach of dutyrdquo United States v Fisher-

Otis Co 496 F2d 1146 1151 (10th Cir 1974) (emphasis

34

added) see Step-Saver Data Sys Inc v Wyse Tech 912 F2d

643 647 (3d Cir 1990) Such relief is appropriate where ldquothere

is a substantial controversy between parties having adverse

legal interests of sufficient immediacy and realityrdquo Armstrong

World Indus Inc by Wolfson v Adams 961 F2d 405 411 (3d

Cir 1992) (quoting Md Cas Co v Pacific Coal amp Oil Co 312

US 270 273 (1941))

Although SEPTArsquos activities did not ripen into actual

violations of sect 12147(a) until SEPTA completed its alterations

to the 15th Street and City Hall Courtyards a substantial

immediate and real controversy existed between SEPTA and

DIA regarding these activities much earlier On August 3 2000

DIArsquos attorney Stephen Gold wrote to City Commissioner

Edward McLaughlin expressing DIArsquos concern that the 15th

Street Courtyard project would not comply with the ADA Gold

relayed the same concerns to SEPTA throughout 2000 in a series

of meetings with SEPTA and the City In these meetings Gold

also discussed SEPTArsquos ADA obligations regarding the City

Hall Courtyard project Because of these interactions SEPTA

was ldquoanxiousrdquo to get a commitment from DIA ldquothat there would

not be a lawsuitrdquo and was undeniably aware that a substantial

controversy existed Accordingly to the extent that SEPTArsquos

planned ldquomodifications [could be] clearly understood from

design drawings and specificationsrdquo SEPTA could have

obtained a declaratory judgment to assuage its anxieties before

proceeding with construction

Conversely our interpretation of sect 12147(a) does not

prevent an entity like DIA from seeking an injunction prior to

the commencement of construction to prevent threatened ADA

35

violations See 43A CJS Injunction sect 8 (ldquoA preliminary

injunction is an anticipatory remedy which prevents the

perpetration of a threatened wrong rdquo) United States v WT

Grant Co 345 US 629 633 (1953) Swift amp Co v United

States 276 US 311 326 (1928)

There is little doubt that it would have been better for all

if DIA or SEPTA had sought declaratory or injunctive relief

before construction began It does not follow however that a

claim for relief on the merits under sect 12147(a) accrues as soon

as claims for declaratory and injunctive relief accrue Ramey v

District 141 378 F3d 269 279 n4 (2d Cir 2004) (ldquo[T]he

possibility of maintaining a preliminary injunction proceeding

does not trigger the statute of limitationsrdquo) see Reiter v

Cooper 507 US 258 267 (1993) (ldquoWhile it is theoretically

possible for a statute to create a cause of action that accrues at

one time for the purposes of calculating when the statue of

limitations begins to run but at another time for purposes of

bringing suit we will not infer such an odd result in the absence

of any such indication in the statuterdquo) Dasgupta v Univ of

Wis Bd of Regents 121 F3d 1138 1140 (7th Cir 1997) (ldquoIf an

employer tells his employee lsquoI am going to infringe your rights

under Title VII at least once every year you work for mersquo this

does not start the statute of limitations running on the future

violations violations that have not yet been committedrdquo) The

following hypothetical adapted from our decision in CGB

Occupational Therapy 357 F3d at 384 n9 illustrates our point

A telephone company informs a homeowner that it has a

right-of-way across the homeownerrsquos property and that next

Friday it plans to utilize the right-of-way to repair an

36

underground line The homeowner informs the company that he

disputes the parameters of the right-of-way Upon receiving

notice of this controversy the phone company could seek a

declaratory judgment to establish the parameters of the right-ofshy

way and protect itself from future trespass liability See Centel

Cable Television Co v Admiralrsquos Cove Assocs Ltd 835 F2d

1359 1361 (11th Cir 1988) Commw v Wertelet 696 A2d

206 209-10 (Pa Super 1997) Conversely the homeowner

could obtain an injunction to prevent the phone company from

entering his property until the right-of-way dispute is resolved

See Wertelet 696 A2d at 209-10 Even though both declaratory

and injunctive relief are available the homeowner has no

trespass claim against the phone company until it physically

enters his property CGB Occupational Therapy 357 F3d at

384 n9 see United States v Union Corp 277 F Supp 2d 478

495 (ED Pa 2003) (citing RESTATEMENT (2D) OF TORTS sect

158)

Assume that neither party seeks preliminary relief and the

phone company enters the homeownerrsquos property At the

moment of entry the homeownerrsquos trespass claim accrues See

CGB Occupational Therapy 357 F3d at 384 n9 Union Corp

277 F Supp 2d at 495 It would be incorrect to say that the

statute of limitations on this claim began to run from the time

the parties discovered the dispute regarding the right-of-way

Similarly it would be incorrect to say that the statute of

limitations on a sect 12147(a) claim begins to run as soon as the

parties discover a controversy that may entitle them to

preliminary declaratory and injunctive relief

37

In light of the availability of preliminary relief to parties

facing the dilemma that confronted DIA and SEPTA we believe

the District Courtrsquos concern that public entities will be forced to

ldquore-engineerrdquo completed projects ldquoto add the ADA-compliance

featuresrdquo is overstated DIA 2006 WL 3392733 at 13 That

may be the unfortunate consequence of our decision in this

instance however

Second the District Courtrsquos desire to give public entities

repose from sect 12147(a) liability is not advanced by an

interpretation of the statute that incorporates the discovery rule

See DIA 2006 WL 3392733 at 13-14 The discovery rule

dictates that a cause of action accrues when a potential claimant

discovers or should have discovered the injury that forms the

basis of his claim Romero 404 F3d at 222 As DIA argues it

is easy to imagine a situation where an individual with a

disability relocates to Philadelphia many years from now and

attempts to use the 15th Street or City Hall Courtyard for the

first time A court might fairly conclude that this individual

neither discovered nor having moved from some distant locale

should have discovered the inaccessibility of these stations until

his arrival there16 Perhaps recognizing this danger Congress

16 Although we do not decide this question we would

hesitate to apply the discovery rule in such a manner The

discovery rule originated as an equitable doctrine to extend the

period during which victims of latent injuries could seek

recovery Andrews 534 US at 27 (noting that the ldquocry for [the

discovery] rule is loudestrdquo in ldquolatent disease and medical

malpracticerdquo cases) Oshiver 38 F3d at 1386 n5 (noting that

38

rejected a variable accrual date17 in favor of a bright-line rule

sect 12147(a) claims accrues ldquoupon the completion of

alterationsrdquo We find nothing ldquoimplausiblerdquo much less

imprudent about this decision DIA 2006 WL 3392733 at 13

To the contrary we find that Congress struck a wise

balance between the plaintiff-friendly accrual rule just described

and the defendant-friendly rule advanced by SEPTA If

sect 12147(a) dictated that claims accrued during the planning

stages of a project as SEPTA suggests potential claimants

would be encouraged to sue early and often and public entities

would have little opportunity to address accessability concerns

informally before being hailed into federal court See Franconia

Assoc v United States 536 US 129 146-47 (2002) This

result would be antithetical to Congressrsquos explicit directive that

ldquothe discovery rulersquos origins are in products liability and medical

malpractice casesrdquo) We find nothing latent about the injuries

defined in sect 12147(a) because the fact that newly renovated

subway stations do not include elevators should be readily

apparent to any reasonably diligent potential plaintiff

17 As further evidence of the indeterminate nature of

SEPTArsquos interpretation of sect 12147(a) SEPTArsquos counsel failed

at oral argument to identify a point during the planning phases

of the 15th Street and City Hall projects (eg upon receipt of

funding approval of blueprints or letting of contracts) at which

it would have been reasonable to conclude that DIA should have

discovered its alleged injuries

39

ADA claims be resolved whenever appropriate through

ldquoalternative means of dispute resolutionrdquo 42 USC sect 12212

SEPTArsquos proffered rule also encourages claimants to

bring unripe lawsuits that rely on ldquocontingent future events that

may not occur as anticipated or indeed may not occur at allrdquo

Texas v United States 523 US 296 300 (1998) Here for

example SEPTA could have decided to install elevators before

completing its renovations thus making DIArsquos ADA and RA

claims unnecessary

Third the facts of this case belie the District Courtrsquos

suggestion that applying the discovery rule to sect 12147(a) will

assure that accessibility concerns will be addressed ldquowell prior

to completion of the workrdquo DIA 2006 WL 3392733 at 13

In fact under the District Courtrsquos accrual theory DIA could

have filed a timely claim after SEPTA completed the 15th Street

Station renovations The District Court concluded that DIA had

notice of SEPTArsquos allegedly injurious alterations to the 15th

Street Courtyard ldquono later than November 1 2000rdquo DIA 2006

WL 3392733 at 14 Accepting the District Courtrsquos conclusion

that DIArsquos cause of action accrued on this date DIA would have

had until November 1 2002 to bring suit SEPTA completed

construction on the 15th Street Courtyard on August 8 2002

three months before November 1 2002 Thus it is apparent that

the rule of law established by the District Court is ineffectual in

preventing cases from being brought after construction is

completed

In sum although we recognize the District Courtrsquos

concerns about the inefficiency of requiring public entities to

40

address accessibility deficiencies after the expenditure of

substantial resources that is the ldquonatural effec[t] of the choice

Congress has maderdquo when it included the phrase ldquoupon the

completion of such alterationsrdquo in the statute Ricks 449 US

at 260 n11 (citation omitted) We are bound by this choice

V

It is undisputed that DIArsquos sect 12147(a) claims were timely

if the statute of limitations began to run from the date the

alterations to the 15th Street and City Hall Stations were

completed See Apprsquox 159 180 (15th Street Courtyard project

completed on August 8 2002) Apprsquox 2 (Complaint regarding

15th Street Courtyard filed on March 14 2003) Apprsquox 164

188 320 (City Hall Courtyard project completed in August

2003) Apprsquox 11 (Complaint regarding City Hall Courtyard filed

on February 15 2005) Because we have so held we reverse the

District Courtrsquos grant of summary judgment in favor of SEPTA

and remand for further proceedings consistent with the opinion

41

(Filed August 19 2008 )

Stephen F Gold (Argued)


Suite 700


Rocco J Iacullo

Mark J Murphy

Disabilities Law Project

1315 Walnut Street

Suite 400

Philadelphia PA

Attorneys for Appellant

Gregory B Friel (Argued)

Jessica D Silver

United States Department of Justice

Civil Rights Division Appellate Section

PO Box 14403

Ben Franklin Station

Washington DC 20044-4403

Attorneys for Amicus Appellant

Saul H Krenzel (Argued)

Saul H Krenzel amp Associates


The Robinson Building Suite 800


Attorneys for Appellee

2














I





v Gates 482 F3d 641 644 (3d Cir 2007))

3








needs









Station












4




























liability on remand

5



appurtenancesrdquo


























6




















letter stated









7


courtyard
























8


City and SEPTA

Apprsquox 477




project as follows




















9


















03-CV-1577 2006 WL 3392733 at 16 (ED Pa Nov 17








10




























11












[sic]rdquo7
















12


disabilitiesrdquo

























on remand

13












project
















14





























15





























16














DIA appealed10

II












17



























18










III



















19










1993)







IV










A

20










Corp 404 F3d 212 221 (3d Cir 2005)


















21











1















alterations

22




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41














I





v Gates 482 F3d 641 644 (3d Cir 2007))

3








needs









Station












4




























liability on remand

5



appurtenancesrdquo


























6




















letter stated









7


courtyard
























8


City and SEPTA

Apprsquox 477




project as follows




















9


















03-CV-1577 2006 WL 3392733 at 16 (ED Pa Nov 17








10




























11












[sic]rdquo7
















12


disabilitiesrdquo

























on remand

13












project
















14





























15





























16














DIA appealed10

II












17



























18










III



















19










1993)







IV










A

20










Corp 404 F3d 212 221 (3d Cir 2005)


















21











1















alterations

22




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41








needs









Station












4




























liability on remand

5



appurtenancesrdquo


























6




















letter stated









7


courtyard
























8


City and SEPTA

Apprsquox 477




project as follows




















9


















03-CV-1577 2006 WL 3392733 at 16 (ED Pa Nov 17








10




























11












[sic]rdquo7
















12


disabilitiesrdquo

























on remand

13












project
















14





























15





























16














DIA appealed10

II












17



























18










III



















19










1993)







IV










A

20










Corp 404 F3d 212 221 (3d Cir 2005)


















21











1















alterations

22




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41




























liability on remand

5



appurtenancesrdquo


























6




















letter stated









7


courtyard
























8


City and SEPTA

Apprsquox 477




project as follows




















9


















03-CV-1577 2006 WL 3392733 at 16 (ED Pa Nov 17








10




























11












[sic]rdquo7
















12


disabilitiesrdquo

























on remand

13












project
















14





























15





























16














DIA appealed10

II












17



























18










III



















19










1993)







IV










A

20










Corp 404 F3d 212 221 (3d Cir 2005)


















21











1















alterations

22




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41



appurtenancesrdquo


























6




















letter stated









7


courtyard
























8


City and SEPTA

Apprsquox 477




project as follows




















9


















03-CV-1577 2006 WL 3392733 at 16 (ED Pa Nov 17








10




























11












[sic]rdquo7
















12


disabilitiesrdquo

























on remand

13












project
















14





























15





























16














DIA appealed10

II












17



























18










III



















19










1993)







IV










A

20










Corp 404 F3d 212 221 (3d Cir 2005)


















21











1















alterations

22




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41




















letter stated









7


courtyard
























8


City and SEPTA

Apprsquox 477




project as follows




















9


















03-CV-1577 2006 WL 3392733 at 16 (ED Pa Nov 17








10




























11












[sic]rdquo7
















12


disabilitiesrdquo

























on remand

13












project
















14





























15





























16














DIA appealed10

II












17



























18










III



















19










1993)







IV










A

20










Corp 404 F3d 212 221 (3d Cir 2005)


















21











1















alterations

22




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41


courtyard
























8


City and SEPTA

Apprsquox 477




project as follows




















9


















03-CV-1577 2006 WL 3392733 at 16 (ED Pa Nov 17








10




























11












[sic]rdquo7
















12


disabilitiesrdquo

























on remand

13












project
















14





























15





























16














DIA appealed10

II












17



























18










III



















19










1993)







IV










A

20










Corp 404 F3d 212 221 (3d Cir 2005)


















21











1















alterations

22




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41


City and SEPTA

Apprsquox 477




project as follows




















9


















03-CV-1577 2006 WL 3392733 at 16 (ED Pa Nov 17








10




























11












[sic]rdquo7
















12


disabilitiesrdquo

























on remand

13












project
















14





























15





























16














DIA appealed10

II












17



























18










III



















19










1993)







IV










A

20










Corp 404 F3d 212 221 (3d Cir 2005)


















21











1















alterations

22




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41


















03-CV-1577 2006 WL 3392733 at 16 (ED Pa Nov 17








10




























11












[sic]rdquo7
















12


disabilitiesrdquo

























on remand

13












project
















14





























15





























16














DIA appealed10

II












17



























18










III



















19










1993)







IV










A

20










Corp 404 F3d 212 221 (3d Cir 2005)


















21











1















alterations

22




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41




























11












[sic]rdquo7
















12


disabilitiesrdquo

























on remand

13












project
















14





























15





























16














DIA appealed10

II












17



























18










III



















19










1993)







IV










A

20










Corp 404 F3d 212 221 (3d Cir 2005)


















21











1















alterations

22




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41












[sic]rdquo7
















12


disabilitiesrdquo

























on remand

13












project
















14





























15





























16














DIA appealed10

II












17



























18










III



















19










1993)







IV










A

20










Corp 404 F3d 212 221 (3d Cir 2005)


















21











1















alterations

22




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41


disabilitiesrdquo

























on remand

13












project
















14





























15





























16














DIA appealed10

II












17



























18










III



















19










1993)







IV










A

20










Corp 404 F3d 212 221 (3d Cir 2005)


















21











1















alterations

22




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41












project
















14





























15





























16














DIA appealed10

II












17



























18










III



















19










1993)







IV










A

20










Corp 404 F3d 212 221 (3d Cir 2005)


















21











1















alterations

22




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41





























15





























16














DIA appealed10

II












17



























18










III



















19










1993)







IV










A

20










Corp 404 F3d 212 221 (3d Cir 2005)


















21











1















alterations

22




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41





























16














DIA appealed10

II












17



























18










III



















19










1993)







IV










A

20










Corp 404 F3d 212 221 (3d Cir 2005)


















21











1















alterations

22




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41














DIA appealed10

II












17



























18










III



















19










1993)







IV










A

20










Corp 404 F3d 212 221 (3d Cir 2005)


















21











1















alterations

22




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41



























18










III



















19










1993)







IV










A

20










Corp 404 F3d 212 221 (3d Cir 2005)


















21











1















alterations

22




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41










III



















19










1993)







IV










A

20










Corp 404 F3d 212 221 (3d Cir 2005)


















21











1















alterations

22




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41










1993)







IV










A

20










Corp 404 F3d 212 221 (3d Cir 2005)


















21











1















alterations

22




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41










Corp 404 F3d 212 221 (3d Cir 2005)


















21











1















alterations

22




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41











1















alterations

22




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41




























23




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41




























24





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41





























enacted to prevent

25

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41

























2




26

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41

























completed




27






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41






























28





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41





























29






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41






















3






30















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41















B











(emphasis added)

31





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41





Court reasoned





















distinct



32



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41



























claims untimely

33

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























36

















158)












37







instance however






















38



























39









claims unnecessary

















completed



40






V












41

C



















considerations Id








34







US 270 273 (1941))























35





States 276 US 311 326 (1928)

























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PRECEDENTIAL FOR THE THIRD CIRCUIT No. 06-5109 …...Philadelphia subway stations. Appellee...

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Transcript of PRECEDENTIAL FOR THE THIRD CIRCUIT No. 06-5109 …...Philadelphia subway stations. Appellee...